A Great Victory for Free Speech at Shippensburg
February 24, 2004
University Agrees to Eliminate its Unconstitutional Speech Code
SHIPPENSBURG, PA—In a historic victory for free speech on college and university campuses, Shippensburg University in Pennsylvania, which first vehemently defended its extensive restrictions upon student free speech, has agreed to repeal its unconstitutional speech code. The settlement comes after the U.S. District Court for the Middle District of Pennsylvania issued a preliminary injunction against the university in September, ordering Shippensburg's president, Anthony F. Ceddia, not to enforce provisions of Shippensburg's code. The successful lawsuit was brought by Foundation for Individual Rights in Education (FIRE) Legal Network attorneys David A. French and William Adair Bonner as the inaugural suit in FIRE's national campaign to rid America's public colleges and universities, permanently, of unconstitutional speech codes.
"This landmark victory marks a great day for FIRE, for our Legal Network attorneys, and, above all, for free speech on America's campuses," said FIRE Chairman Alan Charles Kors. "Despite originally dismissing the lawsuit as 'frivolous and without merit,' Shippensburg has now been forced to recognize that its broad restrictions on free speech violated the First Amendment. Shippensburg's example will not be lost on the hundreds of American public colleges and universities that continue to maintain unconstitutional speech codes. They now know that they maintain those illiberal codes at their peril."
As part of the settlement reached by FIRE Legal Network attorney David A. French and Shippensburg's counsel, Shippensburg has agreed to remove the unconstitutional provisions from its Code of Conduct and to replace them with a simple statement requiring students to comply with applicable federal and state antidiscrimination laws. The university has also agreed to pay attorneys' fees and to rewrite its "Racism and Cultural Diversity Policy" in order to make it explicitly clear that the policy is an unenforceable university statement of values and does not bind student conduct or expression in any way. "A public university is free to express the values it holds dear, but it may not require students to adopt those values, and it may not punish students because their opinion and speech dissent from some official university view," said Kors. He added, "Shippensburg President Anthony Ceddia made the taxpayers of Pennsylvania pay for his discomfort with the Bill of Rights."
FIRE Legal Network attorneys David A. French and William Adair Bonner filed the lawsuit against Shippensburg's administration on April 22, 2003, on behalf of two Shippensburg students. The suit charged that provisions of the university's regulations were unconstitutional and prohibited clearly protected speech.
French said, "Shippensburg's policies, like many campus speech codes, made free speech rights depend on the reaction of the most sensitive student. If speech offended anyone, it lost protection. The university has now chosen at last to embrace the First Amendment and to reject the oppressive and paternalistic policies that prevail at so many of America's public universities."
When the suit was filed, Shippensburg's vague and overbroad speech code stated that the university would not protect (and might punish) speech that was "inflammatory, demeaning, or harmful towards others." As recently as April 8, 2003, Shippensburg's website defined harassment as any "unwanted conduct which annoys, threatens, or alarms a person or group." The code also violated the right of private conscience by requiring that "every member of the community" mirror the official views of the university administration "in their attitudes and behaviors." In his preliminary injunction against Shippensburg in September 2003, U. S. District Judge John E. Jones III held that many of these provisions "could certainly be used to truncate debate and free expression by students."
Shippensburg's decision to settle is a dramatic reversal from its original defense of its speech code and its dismissive approach to the speech codes lawsuit. On September, 11, 2003, on The FOX Report with Shepard Smith, President Ceddia declared, "We are not going to allow FIRE to determine what language will be in our student code of conduct or in our policies and procedures." Kors noted, "What he was really saying was that he was not going to allow the Bill of Rights to put any limit on his own power."
The university also made the claim that the speech code had never been enforced. In an affidavit obtained by attorney French, however, student plaintiff Walter Bair testified that the "University's resident director" ordered him and other resident advisors to remove from students' doors "messages or flyers that were hostile to Osama bin Laden and/or supportive of the American military effort in Afghanistan" following the terrorist attacks of September 11. Bair testified that the resident director informed him that such materials "were offensive to other students and violated the Code of Conduct." See plaintiff Walter Bair's affidavit here. As Kors noted, "It's frightening that Shippensburg enforced these provisions, but, of course, even the existence of such a code produces self-censorship, chills the campus, and limits freedom."
The settlement at Shippensburg represents the second victory in FIRE's Speech Codes Litigation Project. On June 5, 2003, California's Citrus College abandoned its speech code just two weeks after FIRE Legal Network Attorney Carol A. Sobel filed suit on behalf of a student there. While litigation is ongoing at FIRE's third speech code target, Texas Tech University, the efforts of FIRE and the Alliance Defense Fund have already succeeded in ending the university's policy, at this 28,000-student institution, of limiting free speech activities to one gazebo, only twenty feet in diameter.
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, freedom of expression, freedom of conscience, and due process on our nation's campuses. Please visit www.thefire.org to read more.
Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473; firstname.lastname@example.org
Alan Charles Kors, Chairman, FIRE; email@example.com
David A. French, Attorney: 859-231-8500; firstname.lastname@example.org
William Adair Bonner, Attorney: 610-566-2703; email@example.com
Anthony F. Ceddia, President, Shippensburg University: 717-477-1301; firstname.lastname@example.org